The U.S. Court of Appeals for the Second Circuit recently issued a ruling that adopted various arguments advanced in an Amicus Curiae brief that we submitted on behalf of our clients Animal Welfare Institute and Farm Sanctuary. The Second Circuit held that the Freedom of Information Act authorizes courts to require federal agencies to post certain types of information online for the public, instead of merely providing records to an individual requester. On behalf of our clients, we have sued the U.S. Department of Agriculture to compel it to make publicly available various records regarding the enforcement of laws designed to protect humans from unsafe foods by, in part, protecting animals from inhumane conditions. The Second Circuit’s ruling relied in part on our victory before the U.S. District Court for the Western District of New York. Additionally, the Second Circuit adopted our argument that a contrary ruling would inappropriately shift the burden of making records available to the public away from federal agencies and onto organizations such as our clients. You can read the full opinion here.
Bill Eubanks quoted in Bloomberg Law article
Firm owner Bill Eubanks was quoted in a Bloomberg Law article discussing the “highly controversial” factor under NEPA’s implementing regulations that requires an Environmental Impact Statement (“EIS”) when, among other things, governmental or other subject matter experts dispute an agency’s conclusion about the significance of impacts or the methodology for assessing the relevant impacts. The U.S. Court of Appeals for the District of Columbia Circuit recently required an EIS on this basis for the Dakota Access Pipeline, which built on our firm’s groundbreaking victory for National Parks Conservation Association in March 2019 establishing the first-ever precedent in the D.C. Circuit mandating an EIS based on the “highly controversial” test. The court’s Dakota Access Pipeline ruling clarified that to be “highly controversial” for purposes of NEPA, the criticism or dispute need not come from sister agencies but instead may come from any stakeholder with relevant expertise — e.g., tribes, nonprofit organizations, and individuals. Together, the two rulings create a strong foundation for requiring agencies to prepare EISs when disputes exist regarding the methods for assessing impacts and/or the ultimate significance of such impacts. Whether this mandate will be watered down by the Trump Administration’s attempt to rewrite NEPA’s regulations is unclear (although unlikely).
Lizzie Lewis Selected for Environmental Honor
The Environmental Law Institute recently selected Lizzie Lewis, an Associate at our firm, to serve in its Emerging Leader Initiative. This program selects outstanding emerging environmental lawyers to connect, support, and foster dialogue among the next generation of environmental law leaders. Through this program, distinguished participants from various sectors help shape the future of environmental law and policy. Congratulations, Lizzie!
Eubanks & Associates promotes Matt Arnold to an Associate role!
Eubanks & Associates, PLLC is pleased to announce that it has promoted Matt Arnold to the role of Associate. Matt joined the firm in 2019. Since that time, he has been involved in numerous federal cases involving the Endangered Species Act, National Environmental Policy Act, National Forest Management Act, Freedom of Information Act, and other laws. You can read more about Matt’s background here. Congrats, Matt!
Case Filed to Protect Highly Imperiled Mouse Subspecies from Livestock Grazing
Yesterday, on behalf of the Center for Biological Diversity, we filed a complaint challenging the U.S. Forest Service (“USFS”) and U.S. Fish and Wildlife Service’s (“FWS”) failure to adequately protect and conserve the critically endangered New Mexico Meadow jumping mouse in the Lincoln National Forest. The New Mexico meadow jumping mouse is considered a habitat specialist; to survive, the species requires riverine habitat composed of lush vegetation of at least two feet tall. Intense grazing pressure has contributed to habitat loss and fragmentation, which in turn, has led to an 82% reduction in its population size. According to FWS, without immediate measures to preserve and restore the remaining habitat, the New Mexico meadow jumping mouse has a high probability of extinction in the near term. In the Lincoln National Forest, designated New Mexico meadow jumping mouse critical habitat has been severely degraded by ongoing livestock grazing. In the two allotments containing critical habitat, USFS has consistently failed to implement the conservation and mitigation measures that are necessary to address the severe ongoing harm to critical habitat and the New Mexico meadow jumping mouse. Additionally, despite the fact that ongoing grazing activities continue to threaten and degrade designated critical habitat, USFS and FWS have failed to reinitiate consultation as required under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1544. Our Complaint, therefore, seeks to ensure that USFS and FWS fully comply with their mandatory duties under the ESA to adequately protect and conserve the critically endangered New Mexico meadow jumping mouse. A copy of the complaint can be found here.
Photo courtesy of Jennifer K. Frey, Department of Fish, Wildlife and Conservation Ecology, New Mexico State University, via FWS.gov
Major Victory Invalidates Permit for Nebraska Transmission Line
On Wednesday, the U.S. District Court for the District of Colorado issued a ruling in favor of our clients, which include two conservation organizations and two entities that manage conservation easements on ranches in Nebraska. The ruling overturned an incidental take permit issued in 2019 by the U.S. Fish and Wildlife Service (“Service”), which authorized construction of a massive transmission line that will facilitate substantial expansion of wind energy in the fragile ecosystem of the Nebraska Sandhills that serves as habitat for the American burying beetle, Whooping crane, and other imperiled species. Although the court affirmed the agency’s issuance of the permit on certain grounds, the court held that the Service violated the Endangered Species Act, the National Environmental Policy Act, and the National Historic Preservation Act in several ways. Most notably, the court concluded that the Service failed to analyze under any of those laws the additive impacts of wind energy that will stem from the construction of this new transmission line in an area with significant potential for wind energy development. The court also criticized the agency’s failure to consider alternatives that would reduce impacts to historic resources such as the wagon ruts left behind from the westward migration along the Oregon-California Trail in the 1800s. As a result, the court vacated the permit and remanded to the Service for further examination; the opinion can be found here.
*Photo courtesy of the U.S. Fish and Wildlife Service.
Case Filed in Arizona to Protect Highly Imperiled Squirrel
On behalf of our clients—the Center for Biological Diversity, the Maricopa Audubon Society, and the Mount Graham Coalition—we filed a complaint challenging the U.S. Forest Service (“USFS”) and U.S. Fish and Wildlife Service’s (“FWS”) failure to adequately protect and conserve the critically endangered Mount Graham red squirrel on the Coronado National Forest. By any metric, the Mount Graham red squirrel is teetering on the brink of extinction and now bears the somber distinction of being one of the most endangered mammals on Earth. Weathering persistent threats to its continued existence, including three decades worth of federally sanctioned human development, wildfires, and insect infestations, the Mount Graham red squirrel has continued to survive entirely within the confines of the Coronado National Forest. However, a 2017 wildfire on the Coronado National Forest killed roughly 75% of the species’ entire population. Less than 80 individuals remain in the wild. Notwithstanding this near-total collapse of the Mount Graham red squirrel’s population, USFS and FWS continue to sanction activities that will, by the agencies’ own admission, cause further declines the Mount Graham red squirrel’s population. Our complaint, therefore, seeks to ensure the red squirrel’s continued survival by forcing USFS and FWS to comply with their respective duties under the Endangered Species Act, 16 U.S.C. §§ 1531–1544, and USFS’s own regulations governing the administration of the Coronado National Forest. A copy of the complaint can be found here.
Groups Tell Ninth Circuit Not To Allow Harm To Species During Keystone XL Appeal
Today, on behalf of six conservation organizations—Big Bend Conservation Alliance; Environmental Defense Fund; Greater Edwards Aquifer Alliance; Texas Real Estate Advocacy and Defense Coalition; Trinity Edwards Springs Protection Association; and Wimberley Valley Watershed Association—we filed an amicus letter in the Ninth Circuit opposing an emergency stay sought by the federal government that would allow the U.S. Army Corps of Engineers to greenlight countless projects under the legally defective Clean Water Act Nationwide Permit 12 (“NWP 12”), before the Corps cures its failure to consult over the programmatic impacts to endangered and threatened species inherent in the NWP 12 permitting process. A federal judge in Montana recently held that NWP 12 violates the ESA in myriad ways, and partially vacated NWP 12 until the Corps completes the ESA consultation process. The government’s current stay request seeks to continue permitting projects in the absence of any completed programmatic ESA consultation, which could have significant adverse impacts on protected species and their habitat. The amicus letter can be found here.
New Lawsuit Challenges Logging and Burning in the Hoosier National Forest
On behalf of clients in southern Indiana, including the Commissioners and Environmental Commission of Monroe County, the Indiana Forest Alliance, and the Hoosier Environmental Council, we filed a Complaint challenging the U.S. Forest Service’s decision to conduct logging and prescribed burning over 13,500 acres of the Hoosier National Forest, and submitted an Endangered Species Act notice letter explaining how the Service’s actions unlawfully imperil threatened and endangered species. The only National Forest in Indiana, the Hoosier is home to the state’s only congressionally designated wilderness and provides habitat for threatened and endangered species such as the Indiana Bat. The Forest Service plans to conduct logging and burning in the watershed of Lake Monroe—which is the sole source of public drinking water for over 140,000 people in the area of Bloomington—and our lawsuit challenges the Service’s failure to seriously consider how its actions may harm the environment, including the quality of the Lake’s water and the habitat of vulnerable species, and the agency’s failure to consider any alternatives that could better protect the environment. The lawsuit also alleges that the Service’s decision to take actions that could further harm Lake Monroe is at odds with the agency’s own Forest Plan, which obligates the Service to protect and restore the health of watersheds. A copy of the Complaint can be found here, and a copy of the Notice Letter can be found here.
New Lawsuit Challenges the U.S. Forest Service’s Lethal, Wild Elk Feeding Program
Today, on behalf of our clients—Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and Gallatin Wildlife Association—we filed a Petition for Review of Agency Action (“Petition”) challenging the U.S. Forest Service’s (“the Service’s”) authorization of artificial feeding of wild elk on the Bridger-Teton National Forest in Wyoming. Although the artificial feeding of elk began with the well-intentioned goal of curbing winter mortality, today, the practice is intended to ensure successful outings for elk hunters and to prohibit wild elk from migrating through private land. There is nearly universal scientific consensus that the artificial feeding program threatens devastating consequences for the health of the herds found in the Greater Yellowstone Ecosystem—the largest remaining ecosystem in the lower 48 states. Congregating unnaturally dense quantities of wild elk on feedgrounds accelerates the spread of highly infectious diseases, such as brucellosis and Chronic Wasting Disease (“CWD”)—the equivalent of “Mad Cow Disease” in elk. There are no known instances in which elk infected by CWD have recovered from the disease. Notwithstanding the well-known dangers posed by these diseases and artificial feedgrounds’ role in accelerating their spread, the Service has decided to authorize the Wyoming Game and Fish Game Commission to continue feeding wild elk on National Forest System lands for an indefinite time period—all without conducting any of the environmental analysis required under federal law. The Petition filed today, therefore, challenges the Service’s failure to examine the lethal implications of its decision and encourages the Service to examine alternatives to the feeding program that ensure the continued existence of one of Wyoming’s most iconic species. A copy of the Petition can be found here .
(Photo Courtesy of the U.S. National Park Service, https://www.nps.gov/subjects/sound/sounds-elk.htm)
Wind Energy Companies Advised To Abandon High-Risk Sites For Whooping Cranes
Today, on behalf of the non-profit organization North Texas Heritage Association, our firm sent two demand letters urging APEX Clean Energy and EDF Renewables to consider abandoning proposed high-risk locations for industrial wind energy facilities that would be sited as a major obstacle in the airspace directly above the whooping crane migration corridor centerline—i.e., the most sensitive location for flight collision risks based on decades of whooping crane observation and telemetry data. The whooping crane is one of North America’s most imperiled species with only 505 members remaining in a single migrating population. The letters—which can be viewed here and here—urge consideration of lower-risk sites or, at minimum, compliance with federal environmental laws such as the Endangered Species Act, National Environmental Policy Act, Clean Water Act, and National Historic Preservation Act. Our firm has long been involved in efforts to conserve the whooping crane, including a pending lawsuit challenging the U.S. Fish and Wildlife Service’s approval of a massive transmission line in Nebraska in the heart of the whooping crane migration corridor that failed to require any minimization or mitigation measures to avoid killing or harming members of the species.
Brief Filed by Leading Archaeologists Urging Supreme Court to Review Border Wall Authority to Waive Historic Preservation Laws
On behalf of a coalition of nationally and internationally renowned archaeologists and the nonprofit organization Archaeology Southwest, we submitted an amicus brief urging the Supreme Court to review the constitutionality of Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). In an unprecedented delegation of legislative authority, IIRIRA § 102(c) allows the Secretary of the Department of Homeland Security to waive any and all federal and/or state laws that the Secretary, in his or her sole discretion, deems necessary to facilitate the expeditious construction of a wall along the U.S.-Mexico border. The exercise of this waiver authority has permitted the Department of Homeland Security to waive a staggering number of federal laws designed to protect the nation’s irreplaceable archaeological resources along the southern border, including sacred Native American burial grounds and areas inhabited by humans for over 15,000 years. A decision on the petition for certiorari is expected within the next six weeks.
Park Service Experts Urge Supreme Court To Deny Pipeline Through National Park Lands
On behalf of Pamela Underhill (former Superintendent of the Appalachian Trail), Jonathan Jarvis (former Director of the National Park Service), the Coalition to Protect America's Parks, and National Parks Conservation Association, we filed an amicus brief in the high-stakes Supreme Court litigation that will decide the fate of the ill-advised Atlantic Coast Pipeline and many more pipelines that may seek to bore through federal lands located in units of the National Park System. The Trump administration and the pipeline's developers (led by Dominion Energy) have, for the first time in history, argued that the Mineral Leasing Act's longstanding prohibition against granting pipeline rights-of-way in or through lands in the National Park System does not apply to the United States Forest Service where that agency cooperatively manages a parcel of land along with the National Park Service that is both a component of the National Park System and a component of the National Forest System. But this tenuous argument overlooks the plain language of three public lands statutes that govern the National Park System unit at issue -- the Appalachian Trail -- as well as decades of inter-agency memoranda and practice that confirm the federal government's understanding, across many different administrations, that only Congress may grant the pipeline right-of-way sought by developers of the Atlantic Coast Pipeline. The Supreme Court will hold oral argument in this matter on Monday, February 24, and the outcome of the case will have significant ramifications for public land management long into the future.
Nick Lawton Promoted to Senior Associate Role!
Eubanks & Associates is excited to announce that it is promoting Nick Lawton to a Senior Associate role! Nick will start his new position on January 1, 2020, which will include expanded administrative and management responsibilities. Nick began his litigation career with a predecessor firm to Eubanks and Associates in September 2015.
New Lawsuit Challenges Precedent-Setting Great Lakes Wind Project
Yesterday, on behalf of our clients the American Bird Conservancy and the Black Swamp Bird Observatory (“Plaintiffs”), our firm filed a challenge to the Icebreaker Wind Project (“Icebreaker Project” or “Project”), the first-ever offshore wind energy facility proposed for construction in U.S. freshwaters. The precedent-setting Icebreaker Project, which is being funded in part by the Department of Energy (“DOE”) to the tune of $40 million, is slated for construction in the heart of the Central Lake Erie Basin Important Bird Area—a National Audubon Society-designated Global Important Bird Area—and threatens to destroy millions of birds and bats per year in this ecologically critical area. The lawsuit, filed in the U.S. District Court for the District of Columbia against DOE and the U.S. Army Corps of Engineers (“the Corps”), highlights numerous fatal flaws in those agencies’ environmental review of the Icebreaker Project, including, among others, DOE’s refusal to prepare an Environmental Impact Statement under the National Environmental Policy Act and consider reasonable alternatives that would reduce the devastation likely to flow from the Project’s construction and operation. In addition, the lawsuit challenges the Corps’ reliance on defective scientific data and an overly narrow range of alternatives in issuing a permit for the Project under Section 404 of the Clean Water Act. If the Icebreaker Project is permitted to proceed, it will be the benchmark by which freshwater offshore wind energy projects are measured. For this reason, the superficial, result-oriented environmental analysis conducted by DOE and the Corps must not be permitted to justify this Project. A copy of the Complaint can be found here.
Eubanks & Associates Lawyers Go To Seattle To Protect Gray Whales
Today, two of our attorneys are traveling to Seattle to participate the first waiver proceeding under the Marine Mammal Protection Act (“MMPA” or the Act) in over twenty years. In April 2019, the National Marine Fisheries Service (“NMFS”) announced that it would seek a waiver of the MMPA’s moratorium on the taking of marine mammals on behalf of the Makah Tribe to allow the hunting and killing of Eastern North Pacific gray whales in the United States Exclusive Economic Zone. In order to issue a waiver of the MMPA, NMFS must demonstrate, on the basis of the best scientific evidence available, that the proposed taking will not adversely affect marine mammal stocks and will be consistent with the policies and purposes of the Act, and must propose regulations to govern the issuance of permits under the proposed waiver. The decision to waive the take moratorium and issue regulations governing such take must be made on the record after an opportunity for an agency hearing. It is clear from NMFS’s testimony that the proposed waiver and regulations will not be consistent with the policies and purposes of the MMPA, including because the hunt will result in the take of Western North Pacific gray whales, which are listed as endangered under the Endangered Species Act, and risks depleting the genetically and behaviorally distinct “resident” Pacific Coast gray whale population. The need for a precautionary approach to gray whale management is further evidenced by the fact that the Eastern North Pacific gray whale population is currently undergoing an Unusual Mortality Event (“UME”) due to an increased number of strandings. It would be contrary to the principles of sound resource management to authorize the intentional killing of individuals from a population that is experiencing increased mortality until the duration, severity, and causes of the UME can be determined. Our attorneys will be representing the Animal Welfare Institute in the administrative hearing, scheduled to begin on November 14, 2019.
(Photo courtesy of NOAA Fisheries)
Eubanks & Associates welcomes Matt Arnold as the firm's new Law Fellow!
This week, Matt Arnold started as a Law Fellow with Eubanks & Associates, LLC. We are very excited for him to join our team! More info about Matt:
Before joining the firm, Matt clerked for the Honorable Elizabeth C. Wingo at the Superior Court for the District of Columbia. Matt has also previously served as a law clerk for both Defenders of Wildlife and Meyer Glitzenstein & Eubanks LLP.
Matt received his J.D., cum laude, from Vermont Law School in 2018. During law school, Matt served as the Managing Editor of the Vermont Law Review, which selected his Note, What’s Good for the Goose May not be Good for the Gander: A Bird’s Eye View of the Emerging Incidental Take Permit Program Under the Migratory Bird Treaty Act, 42 Vt. L. Rev. 152 (2018), as the 2017 Vermont Law Review Note Competition Winner. In law school, Matt was also an active member of Vermont Law School’s Moot Court Advisory Board. During the school’s 2017 Debevoise Moot Court Competition, Matt was awarded “Best Respondents’ Brief.” In 2018, Matt was selected to represent Vermont Law School in the National Environmental Law Moot Court Competition at Pace Law School.
Prior to attending law school, Matt earned a bachelor’s degree in biology from the College of Charleston, where he focused on microbiology and saltwater algae. After graduating from college, Matt worked as a Naturalist in the salt marshes of South Carolina, where he studied the health of native avian populations and shared his admiration of wildlife with visitors to the Lowcountry. Ultimately, the encroachment of a resort development into pristine dune habitat compelled Matt to attend law school to defend the wild places he cherishes.
In his spare time, Matt is an avid birder with a particular admiration for sparrows and shorebirds. Matt is also a public lands geek who enjoys hiking (slowly, while gazing at the underbrush through his binoculars) with his wife, Sabrina, and their dog, Forrest.
Agencies Told To Conduct Robust Environmental Review Of Pipeline Impacts
Today, on behalf of a coalition of conservation organizations and affected municipalities, we submitted a 60-day notice of intent to sue letter under the Endangered Species Act (“ESA”) in connection with the proposed Permian Highway Pipeline in Texas. The letter urges the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service to avoid abusing the Section 7 consultation process under the ESA by providing incidental take authorization for impacts to ESA-listed species that will occur on private lands that are not under Federal control or jurisdiction. At minimum, the letter urges that the agencies subject the pipeline’s myriad adverse environmental impacts to scrutiny under other federal laws such as the Clean Water Act, National Environmental Policy Act, and National Historic Preservation Act.
Court Requires Federal Government to Take a Hard Look at Seismic Risks to Nuclear Weapons Facility
Today, the U.S. District Court for the Eastern District of Tennessee issued a ruling in favor of our clients, the Oak Ridge Environmental Peace Alliance and Nuclear Watch New Mexico, as well as the Natural Resources Defense Council, finding that the Department of Energy (“DOE”) and the National Nuclear Security Administration (“NNSA”) violated the National Environmental Policy Act (“NEPA”) by failing to take a hard look at serious seismic risks to aging, dilapidated nuclear weapons facilities in Oak Ridge, Tennessee. The NNSA had previously decided to continue enriching uranium for nuclear weapons in facilities originally built during the Manhattan Project and the Cold War, while rejecting calls for the agency to seriously consider new information showing increased risks of large earthquakes that could damage or even destroy these buildings, potentially causing a catastrophic release of nuclear and toxic contamination. Recognizing the fundamental importance of our clients’ claims, the court found it was “hard-pressed to imagine a more dramatic hypothetical than this, where it must contemplate what might occur if a major earthquake struck a nuclear weapons manufacturing facility located in a major population center.” Reasoning that the NNSA “blatantly disregarded” its own regulations in dismissing our clients’ serious concerns about seismic risks, the Court vacated the NNSA’s decisions and NEPA analyses and remanded the issue to the agency for a more thorough evaluation of these risks.
Bill Eubanks Selected by Law360 as a Top Environmental Lawyer
This week, the national legal publication Law360 selected Bill Eubanks as one of the nation’s five best environmental attorneys under the age of 40, based on his stellar record of winning difficult cases and setting important precedents on many legal issues of first impression in federal courts throughout the country. According to Law360, this is the first time that this award has been bestowed on a public interest litigator. Bill recently sat down with Law360 to discuss his accomplishments and vision for the future of environmental law.